[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

codefendant. Becker agreed to write the opinion.
The second ex parte communication occurred in writing the next day, when the judge
found on his desk a 17-page draft of a sentencing opinion in the Roberts case. Judge Stuard
reviewed the draft, which set forth five sections recounting the case history, facts,
aggravating circumstances, mitigating factors, and conclusions of law. He then noted one
or more corrections to be made.
In a third ex parte communication, Judge Stuard asked Becker later that day to make
the corrections. Becker made the corrections and also incorporated Bailey’s editorial
suggestions, made after Bailey’s review of the draft opinion. The fourth communication
occurred when Judge Stuard received the corrected version of what became his opinion
sentencing Roberts to death.
Judge Stuard had had an informal practice of enlisting prosecutorial assistance in
drafting journal entries in criminal cases. He employed that practice in preparing the
sentencing opinion in the Roberts case but failed to include defense counsel in the process.
Ingram and Juhasz did not learn until Roberts’s sentencing hearing, on June 20, 2003, that
the prosecution had assisted in preparing the court’s opinion. They discovered what had
happened when Judge Stuard read his opinion from the bench, and defense counsel, who
did not have a copy of the sentencing order, noticed that one of the prosecutors seemed to
be silently “reading along” with the judge, turning pages of a document in unison.
Ingram objected. In the sidebar discussion that followed, Judge Stuard acknowledged
that he had given his notes to the prosecution and instructed counsel to draft the
sentencing order. Ingram then challenged the process by which the court had prepared the
order sentencing Roberts to death as an impermissible collaboration and ex parte
communication.
Judge Stuard concedes and the board found that his ex parte communications with
Becker, engaged in without the knowledge or consent of opposing counsel, violated [Code
of Judicial Conduct Rules 1.1 and 1.2] (requiring a judge to “ . . . comply with the law and
act at all times in a manner that promotes public confidence in the integrity of the
judiciary”) and [Rule 2.9] (providing that, except in situations not relevant here, “[a] judge
shall not initiate, receive, permit, or consider communications [as to substantive matters or
issues on the merits] made to the judge outside the presence of the parties or their
representatives concerning a pending or impending proceeding”). Becker initially defended
his actions, but the board found him in violation of [Rule of Professional Conduct 8.4(d)]
(prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of
justice) and [Rule 3.5(b)] (prohibiting, with exceptions not relevant here, ex parte
communication on the merits of a cause with a judge before whom the proceeding is
pending). Becker has not objected to the board’s report.
Clear and convincing evidence supports that Judge Stuard and Becker committed the
cited misconduct. Indeed, in the appeal that followed Judge Stuard’s order sentencing
Roberts to death, we held that the court committed prejudicial error by delegating
responsibility for the content and analysis of its sentencing opinion. We vacated the death
sentence and remanded the cause with instructions for Judge Stuard to personally review
443